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HomeMy WebLinkAboutGRAND AVE. PROPERTIES, LLCRECORDING REQUESTED BY AND WHEN RECORDED MAIL N-2019-166 0 0 TO: i j LLI C� Uj c" City of Santa Ana J s o N Planning and Building Agency, M-20 _ r N 20 Civic Center Plaza 2 ti PO BOX 1988 LIJ J N Santa Ana, CA 92702 CO L COF 49 ?3A`0 N\. ?tzf5t- C°"t! (Space above Line for Use by Recorder) This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383 CITY OF SANTA ANA PROPERTY MAINTENANCE AGREEMENT FOR CONDITIONAL USE PERMIT NO. 2018-26 AND VARIANCE NO.2018-12 FOR THE PROPERTY LOCATED AT 2701 NORTH GRAND AVENUE This PROPERTY MAINTENANCE AGREEMENT (the "Agreement") is effective upon the date of recordation of the Agreement in the Official Records of Or4nge County, California (the "Effective Date"), and is entered into on this � day of . 2019, by and between the City of Santa Ana, a municipal corporation (the "City") and Grand Ave. Properties, LLC, a California limited liability company, and/or its successors and assigns in the "Property" (as hereinafter defined) (collectively the "Owner"). The capitalized term "Parties" shall be a collective reference to both City and Owner. The capitalized term "Party" shall refer to either City or Owner interchangeably as appropriate. RECITALS WHEREAS, Owner seeks to develop the real property located at 2701 North Grand Avenue in Santa Ana, CA (APN: 390-171-03), which is more particularly described in the legal description attached hereto as Attachment "A" and incorporated herein (the "Property"); WHEREAS, on September 27, 2017, Owner (sometimes referred to hereinafter as "Applicant") submitted an application to the City (the "Development Project Application"), to allow the construction of a 1,612-square foot commercial building to be used as an eating establishment for Starbucks and a drive -through lane on the Property ("Project"); WHEREAS, this Agreement pertains to the Project described in the preceding paragraph; WHEREAS, the Parties seek to enter into this Agreement to ensure the proper compliance with Project approval conditions, operational restrictions, maintenance, repair and upkeep of the Property, improvements, and permitted uses. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED HEREIN, THE CITY AND OWNER AGREE AS FOLLOWS: CAB 8.28.19 SECTION 1. RECITALS. The Recitals above are true and correct and incorporated into the body of this Agreement by this reference. SECTION 2. COMPLIANCE WITH APPROVED DEVELOPMENT PLANS AND CITY CONDITIONS. This Agreement fulfills the requirement set forth in Section 1, Condition No. 4 of each of Planning Commission Resolution Nos. 2019-04 and 2019-05. Owner accepts and shall fulfill all conditions of approval set forth in Planning Commission Resolution Nos. 2019-04 and 2019-05. The Project shall substantially conform with the Development Project Application and the plans contained therein, which are on file with the City Planning and Building Agency. SECTION 3. PROPERTY MAINTENANCE; ENFORCEMENT BY THE CITY OF SANTA ANA. A. Ongoing ing Operational/Maintenance Conditions Owner hereby agrees to maintain and repair the following elements of the Property and the Project: 1. The Property shall be maintained in conformance with the standards generally applicable to comparable retail/commercial businesses located within the City. The Project shall comply with operational conditions of the Santa Ana Municipal Code (SAMC) applicable during any period(s) of construction or major repair (e.g., proper screening and securing of the construction site; implementation of proper erosion control, dust control and noise mitigation measure; adherence to approved project phasing etc.). 2. The Development shall comply with ongoing operational conditions, requirements and restrictions, as applicable (including but not limited to hours of operation, security requirements, the proper storage and disposal of trash and debris, and/or restrictions on certain uses, including uses determined by the Planning Commission in its Resolution Nos. 2019-04 and 2019-05 to be incompatible or inconsistent with any authorized uses; compliance with applicable State and/or federal statutes and regulations, including but not limited to compliance with statutes and regulations regarding the appropriate operating guidelines for certain equipment (e.g., emissions standards, radio frequency emissions standards etc.). 3. All onsite activities shall comply with the City of Santa Ana Noise Ordinance at all times. 4. The Property shall be in ongoing compliance with the approved design and construction parameters, signage parameters and restrictions as well as landscape designs, as applicable. 5. Ongoing maintenance, repair and upkeep of the Property and all improvements located thereupon shall be provided by the Owner, including, but not limited to, controls on the proliferation of trash and debris about the Property; the proper and timely removal of graffiti; the timely maintenance, repair and upkeep of damaged, vandalized and/or weathered buildings, structures and/or improvements; the timely maintenance, repair and upkeep of exterior paint, parking striping, pedestrian pathways/open space areas, lighting and irrigation fixtures, walls and fencing, publicly accessible bathrooms and bathroom fixtures, landscaping and related landscape improvements and the like, as applicable). 6. If the Applicant and the Owner of the Property are different (e.g., if the Applicant is a tenant or licensee of the Property or any portion thereof), both the Applicant and the Owner of the Property shall be signatories to this Agreement and both shall be jointly and CAB 8.28.19 2 severally liable for compliance with its terms. If the Applicant is a sub -lessee or sub - licensee of any portion of the Property or any equipment located upon the Property (e.g., as would be the case with a wireless carrier seeking to co -locate equipment upon an existing wireless telecommunication facility), the Applicant, the primary :lessee/licensee and the underlying property Owner shall all be signatories to this Agreement and shall all be jointly and severally liable for compliance with its terms. 7. Any "Responsible Party" (as hereinafter defined) responsible for complying with the terms of this Agreement shall not transfer its fee simple interest in the Property unless the prospective transferee agrees in writing to assume all of the duties, obligations and responsibilities set forth in this Agreement. The "Responsible Party" shall mean the Owner and/or the transferee of the Owner's fee simple interest in the Property. 8. The surface of the driveways, fire lanes, vehicle parking areas, and public right-of- way areas adjacent to the Property as depicted on the "Property Site Plan" (as hereinafter defined) shall be maintained in a good and serviceable condition by the Owner, and shall be kept free of weeds, trash, or other debris. The "Property Site Plan" shall mean the site plan submitted as part of the Development Project Application as subsequently approved by the City. 9. The removal of solid waste, trash, or other debris from the Property shall be undertaken by a duly franchised solid waste hauler authorized to provide such services to commercial properties in the City. 10. The outdoor trash storage enclosure shall screen all trash containers from view. 11.1Landscaping for the areas shown on the Property Site Plan shall be continuously maintained by the Owner as per approved landscape plans in a good condition. 12. Lighting shall be provided in all parking areas, vehicular access ways, and along major walkways, in accordance with the SAMC and approved by the Planning and Building Divisions. 13. Exterior surfaces of the Building and all other structures, fixtures, or other improvements located on the Property, shall be kept free and clear of graffiti. Graffiti shall be removed within forty-eight (48) hours following the time of its application. Graffiti shall be removed by either painting over the evidence of such graffiti with a paint that has been color matched to the surface to which it is applied or graffiti may be removed with solvents or detergents, as applicable. A failure by Owner to remove graffiti within forty-eight (48) hours following its application on any structure, fixture or other improvement located on the Property shall be deemed to be a "Maintenance Deficiency" as defined below in Section 3(d). 14. The vehicle parking areas shown on the Property Site Plan shall be maintained in a good condition to facilitate the efficient loading and unloading of delivery truck areas (limited to areas immediately adjacent to the Building) and parking within the American with Disabilities Act complaint vehicle parking spaces for the Building as shown on the Property Site Plan. 15. Any abandoned vehicle on the Property shall be promptly removed. 16. All onsite parking spaces shall be accessible and free of obstructions and can only be used for parking of operable vehicles at all times. 17. Vehicles utilized for ingoing and outgoing deliveries to the Building shall not exceed the CAB 828.19 1 weight limits set forth by the Department of Transportation Federal Highway Administration applicable to Class 1 through Class 7 type -vehicles, so long as no such vehicle exceeds forty (40) feet in length. IS. The idling of vehicles, including delivery vehicles, is prohibited within the Property or adjacent streets. For purposes of this Agreement, "idling" refers to the running of a vehicle's engine (including those used for incoming and outgoing deliveries at the Building) when such vehicle is not in motion for more than five (5) minutes, including when such vehicle is parked outside the Building or otherwise stationary with the engine running. 19. All operations of any preapproved mechanical equipment shall be conducted within the Building and that all openings to the Building shall be maintained in a closed position during the usage of such mechanical equipment usage. B. Owner Confers to City Right to Conduct Maintenance and R airs Owner hereby confers upon the City the right but not the obligation to conduct maintenance and repairs on the Property as required in Section 3(A) above, subject to the conditions of Section 3(C) below. Such powers under this Section 3(B) are conferred by Owner on the City for the benefit of the City to provide for the health, safety and welfare of all persons who use the Project or any portion thereof and other persons who reside in the vicinity of the Project and the entire City. No transfer of the fee simple interest in the Property shall be conveyed unless the prospective transferee of such fee simple interest agrees in writing to assume all duties, obligations, and responsibilities set forth in this Agreement. C. City Right to Enforce. The right and power of the City to enforce the maintenance and repair obligations of Owner shall not be deemed to arise by virtue of this Section 3 alone. Any provision of this Agreement to the contrary notwithstanding, the City may, by public nuisance abatement proceeding, and/or by the initiation of an action at law or in equity, enforce the law as relates to the abatement or elimination of a public nuisance at the Property or enforce any provision or conditions of approval of a building or development permit issued for the Property by the City. It shall be presumed that the City is proceeding under the general municipal policy powers reserved to the City under this Section 3(C) if the City issues a written notice of "Maintenance Deficiency" as defined in Section 3(D) below. D. Notice of Maintenance Deficiencies. Upon any failure by Owner to perform any of the maintenance and repair obligations referenced in this Agreement prior to the applicable cure period (such failure hereinafter referred to as a "Maintenance Deficiency"), the City shall issue written notice of such Maintenance Deficiency to Owner, as provided in Section 13 below ("Notice of Maintenance Deficiency"). E. Maintenance Deficiencies. Owner shall comply with any issuance of a Notice of Maintenance Deficiency within the timeframe specified by the City's Code Enforcement Division to cure the Maintenance Deficiency identified in such Notice of Maintenance Deficiency. Within the timeframe specified by the City's Code Enforcement Division with respect to the Notice of Maintenance Deficiency, Owner may submit a written request to the City seeking additional time to cure the Maintenance Deficiency. Each such written request for additional time shall describe and specify in detail (i) which tasks require additional time to complete the cure of the Maintenance Deficiency, (ii) the reason why such additional time is needed under the circumstances, and (iii) what steps Owner has already taken to commence the cure of the Maintenance Deficiency. The City, in its reasonable discretion, may grant, CAB 8.28.19 4 conditionally grant or deny any written request for additional time as determined by the Code Enforcement Manager. The City shall be under no obligation to consider untimely submitted time extension requests or requests which fail to provide any of the information required above. F. Intentionally Deleted. G. City May Cure Maintenance Deficiency. 1. In the event Owner fails to cure a Maintenance Deficiency within the time allowed, the City may initiate a public hearing pursuant to Section 41-651 of the SAMC. At such a public hearing the City shall consider such evidence and testimony of interested persons as may be relevant to the matter. If upon the conclusion of a public hearing, the City makes a written finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the maintenance and repair obligations in this Agreement, the City shall have the right to record the notice described in Section 3(I) of this Agreement and thereafter the City may enter upon or otherwise access the Property for the purpose of curing the Maintenance Deficiency without further notice to Owner. 2. The foregoing notwithstanding, the City, without further notice to Owner, shall have the right to enter the Property during reasonable hours and without any material disruption to the business(s) operating on the Property and remove graffiti, solid waste, trash, or other debris under the following two circumstances: (i) a failure by Owner to remove graffiti within forty-eight (48) hours following its application on any structure, fixture or other improvement located on the Property that is visible from an adjacent or contiguous public right-of-way; or (ii) a failure by Owner to remove the accumulation of solid waste, trash, or other debris that is visible for a duration of three (3) days from an adjacent or contiguous public right-of-way or from a designated fire lane on the Property. Any sum expended by the City for the removal of graffiti, solid waste, trash, or other debris pursuant to this Section 3(G)(2) shall become a lien on the Property in accordance with Section 3(H) below and the City shall have the right to enforce such lien in the manner provided in Section 3(I) below. H. City's Lien Authority. Any sums expended by the City in enforcing, maintaining, repairing or curing any element of the Property as authorized in this Agreement for which a Maintenance Deficiency has been declared by the City to exist under Section 3(G) above, shall become a lien on the Property. The powers conferred upon the City pursuant to this Section 3(H) are in addition to all other remedies which the City may have to enforce this Agreement, including, without limitation, those remedies set forth in Section 3C above. I. Enforcement of Liens by the City. 1. The rights conferred upon the City by Owner under this Agreement expressly include the power to establish and enforce a lien or other encumbrances against the Property or any portion thereof, subject and subordinate to all then existing other liens and encumbrances on the Property, in an amount reasonably necessary to reimburse the City for the necessary and reasonable costs incurred by the City under Section 3(G) above to restore the Property and the Project to the maintenance standards required under Section 3 of this Agreement, including CAB 8.28.19 5 reasonable attorney's fees and costs of the "prevailing parry" (as hereinafter defined) associated with the correction of the Maintenance Deficiency in connection with such action. If the amount of any such lien as it relates to a Maintenance Deficiency is not paid within thirty (30) calendar days after written notice by the City to Owner, demanding such payment, the City shall have the right to enforce its lien in accordance with the statutory authority referenced under this Section 3(I)(1). The Prevailing Party in a collection or other lien enforcement action authorized by this Section 3(I) shall also have the right to collect its reasonable attorney's fees, costs and expenses associated with any action or proceeding to enforce or defend its rights hereunder. 2. In the event that the City makes a written finding that a Maintenance Deficiency exists on the Project as provided in Section 3(G) above, then in addition to its lien powers under Section 3(I)(1) above, the City may record a Notice of Maintenance Deficiency against the Property. Such Notice of Maintenance Deficiency shall refer to Section 3(G) of this Agreement, be signed by the Executive Director of the Planning and Building Agency and shall have a duration following the date of its recordation until such date the Maintenance Deficiency is corrected. J. Approval; Waiver. No approval by Owner shall be necessary for the City to establish a lien for non-payment of amounts expended by the City to cure a Maintenance Deficiency under Section 3 of this Agreement. No failure by the City to enforce any default pertaining to the maintenance or repair of any element of the Property or the Project under Section 3 of this Agreement shall be deemed to be a waiver of the right or power of the City to enforce any subsequent Maintenance Deficiency thereof by Owner. K. Priority of City Ordinances and Other Laws. Notwithstanding any provision in this Agreement to the contrary, the approval and acceptance of this Agreement by the City shall not be deemed a waiver or release of any applicable provision of any building permit or other development project permit issued by the City for the improvement of the Project on the Property, or of any other applicable ordinance or law or the general police power of the City. In the event of any conflict or inconsistency between any provision contained in this Agreement and any ordinance, law, or the general police power of the City, the latter shall prevail. SECTION 4. TERMINATION of AGREEMENT. This Agreement shall terminate and be of no further force or effect upon the mutual written termination of this Agreement by Owner and City. SECTION 5. LEGAL ADVICE. Each Party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or having knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and they have freely signed this Agreement without any reliance upon any agreement, promise, statement, or representation by or on behalf of the other Party, or in their respective agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. CAB 8.28.19 SECTION 6. REPRESENTATION AND WARRANTIES OF OWNER. Owner represents and warrants for the benefit of and reliance by the City as follows: A. Owner validly exists under the laws of the State of California and is authorized to conduct business in California and is authorized to carry on its business being conducted as contemplated in this Agreement; B. Owner has the power and authority to enter into this Agreement; C. This Agreement, and each portion thereof, shall be a legal, valid and binding obligation of Owner and enforceable against Owner in accordance with its terms, subject to bankruptcy and other equitable principles. SECTION 7. COVENANT OF OWNER. Owner declares that the Project and the Property shall be held, conveyed, leased, used, and improved subject to the provisions of this Agreement and this Agreement is expressly declared to be for the benefit of the Project and the Property and the abutting public rights -of -way. The Property maintenance covenants of Owner in favor of the City which arise under this Agreement shall run with and burden the Property and shall be binding upon the Owner and all transferees acquiring fee simple title to the Property, or any part thereof, and the successors and assigns of each of them. SECTION 8. TIME OF THE ESSENCE. Time is expressly made of the essence with respect to the performance by City and Owner of each and every obligation and condition of this Agreement. SECTION 9. ATTORNEYS' FEES. hi addition to any other remedies provided herein or available under applicable laws, if either Parry to this Agreement commences a lawsuit or other action against the other Parry arising out of, or in connection with this Agreement, the "Prevailing Party" in such lawsuit or action shall be entitled to recover from the non -prevailing party its costs and expenses of litigation, including, but not limited to, its reasonable attorneys' fees, expert witness fees, costs of investigation, reasonable attorneys' fees incurred in any appeal from any judgment rendered therein and its costs and attorneys' fees in connection with collection of any judgment. SECTION 10. INTEGRATION. Notwithstanding any previous negotiations or agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof, this Agreement constitutes the entire agreement and understanding between the Parties relating to the terms, provisions, conditions and covenants contained in this Agreement, except as otherwise expressly provided. All prior or contemporaneous negotiations, agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each Parry is entering into this Agreement based solely upon the representations set forth herein and upon each Party's own independent investigation of any and all facts such Party deems material. SECTION 11. SEVERABILITY. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. SECTION 12. AMENDMENT. No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to City approval by the City Manager or designee. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid. SECTION 13. NOTICES. All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose. All notices, demands, and requests shall be in writing and shall be deemed to have been given: (a) when hand delivered to the other Party; or (b) 48 hours after deposit in the United States mail, registered or certified, return receipt requested, postage prepaid, or (c) the next business day after deposit with a national overnight delivery service reasonably approved by the Parties (FedEx and UPS being deemed approved by the Parties) addressed to the Party to be notified. Rejection or other refusal to accept or the inability to deliver because of a changed address, of which no notice was given as required herein, shall be deemed to be receipt of the notice sent. OWNER: Grand Ave. Properties, LLC 714 So. Plymouth Blvd. Los Angeles, CA 90005 Attn: Amir Houriani CITY: City of Santa Ana Planning and Building Agency, M-20 PO Box 1988 Santa Ana, CA 92702 (714) 647-5804 PlannineDenartment(a,santa-ana.ore SECTION 14. COUNTERPARTS. This Agreement shall be executed in three (3) original counterparts each of which shall be of equal force and effect. One fully executed original counterpart shall be delivered to Owner and the remaining two original counterparts shall be retained by the City. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] CAB 8.28.19 8 [SIGNATURE PAGE FOR PROPERTY MAINTENANCE AGREEMENT] IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as the date first above written and as evidenced by the signatures of the authorized officers of each of them. CITY City of Santa Ana, a municipal corporation By: Kristine Ridge City Manager F11"AWFul Grand Ave. Properties, LLC, a California limited liability company Mehrdad Houriani, Operating Manager APPLICANT (Execution required by AITES19 Planning Commission Resolution Nos. 2019- 04 and 2019-05, Condition No. 4) Q'�L Grand Ave. Properties, LLC, CLERK OF THE COUNCIL a California limited liability company Mehrdad Houriani, Operating Manager [NOTARIZED SIGNATURES REQUIRED] CAB 8.28.19 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On _ September 11, 2019 before me, Rosa A. Flores Notary Public (insert name and title of the officer) personally appeared Kristine Ridge, who proved to me on the basis of satisfactory evidence to be the person(p) whose name(p) is /are -subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hWher/their authorized capacity(aes} and that by his/her1#;.& signature(pr) on the instrument the personal, or the entity upon behalf of which the person(p) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. __� ROSA A. FLORES Notary Puhi" -California Orange County ommission. 22284S0 ■ My CComm. Expires Feb 7, 2022 a Signature(Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA_______) COUNTY OF On (insert name of officer), a Notary Public in and for said State, personally appeared, MEHRDAD HOURIANI, who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity ties), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument. 2019, before me, I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature CAB 8.28.19 10 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA______) COUNTY OF ) c�— On ; l 2019, before me, %% S I (insert name of officer), otary Public in and for said State, personally appeared,/ le re/ka/ %c who proved to me on the basis of satisfactory evidence to be the ptQon f k whose name_(s)aare subs bed to the within instrument and acknowledged to me tha(!j_osfie/they executed the same in authorized capacity, and that by�er/their signatureXon the instrument the person Gs A, or the entity upon behalf of which the perso�Xacted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature THQMAS HAN JUNG r� COWA 12267695 N( a' NJTARYPUBI_iC-CALIPC$g1A In my CCMM�EXP. D, , 2—" CAB 8.28.19 11 Attachment "A" Legal Description of the Property Real property in the City of Santa Ana, County of Orange, State of California, described as follows: PARCEL A PARCEL 2, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 4 PAGE 45 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF FAIRHAVEN AVENUE AND GRAND AVENUE VACATED AND ABANDONED BY THAT CERTAIN RESOLUTION 2007-082 RECORDED NOVEMBER 8, 2007 AS INSTRUMENT NO. 2007000675542 AND RECORDED DECEMBER 18, 2007 AS INSTRUCTION NO. 2007000756519 OF OFFICIAL RECORDS, WHICH WOULD PASS BY OPERATION OF LAW. 16TON9:111: AN EASEMENT FOR PEDESTRIAN AND VEHICULAR INGRESS AND EGRESS AS GRANTED IN THAT CERTAIN EASEMENT AGREEMENT RECORDED FEBRUARY 14, 2019 AS INSTRUMENT NO.2019000045727 OF OFFICIAL RECORDS. APN: 390-171-03 CAB 8.28.19 12